Opinion - Florida State University College of Law

GUS BECKSTROM,
Appellant,
vs.
VOLUSIA COUNTY CANVASSING
BOARD and ROBERT L. VOGEL,
Appellees.
No. 91,642
[March 19, 1998 1
WELLS, J.
We have for review a final judgment of
the Circuit Court of the Seventh Judicial
Circuit in Volusia County, which judgment has
been certified by the Fifth District Court of
Appeal as presenting an issue of great public
importance, having a great effect on the proper
administration of justice throughout the state,
and requiring immediate resolution by this
Court. We have jurisdiction. Art. V, g
3(b)(5), Fla. Const.
This case arises out of the November
5, 1996, Volusia County election in which
appellant Gus Beckstrom was an unsuccessful
candidate for sheriff. On November 8, 1996,
pursuant to section 102.166( 1 l), Florida
Statutes (1995),’ appellant filed in the circuit
‘Section 102.166( 1 1 ), Florida Statutes (1995).
provides in rclcvant part:
Any candidate for nomination
or election, or any elector qualified to
vote in the election related to such
candidacy. shall have the right to protest
the returns of the election or the practices
attendant thcrcto as being fraudulent by
presenting to any circuit judge ofthc
circuit wherein such fraud is allcgcd to
court a protest of the election returns. The
protest was based on allegations of fraud in the
counting of absentee ballots by the staff of the
Volusia County Supervisor of Elections.
County election officials had tabulated the
votes, and ap ellee Volusia County
Canvassing Board ? had subsequently certified
the result to the Department of State, which
declared incumbent Sheriff Robert L. Vogel,
Jr. to be the winner of the election.
One month aRer filing the initial
protest, appellant moved the court to order a
manual re-count of the absentee ballots. The
court granted the motion, and the clerk of the
circuit court conducted a re-count, which was
observed by representatives for both
candidates. The clerk’s re-count revealed that,
despite miscounts in the initial ballot count,
Vogel was the winner of the election. The recount showed 79,902 total votes for Vogel
and 77,012 total votes for Beckstrom.
have occurred a sworn, written protest.
‘A county canvassing board is composed ofthe
county supervisor of elections, a county court judge, and the
chair of the board of county commissioners. 9: 102.14 I(1 ),
Fla. Stat. (1995).
3According to the vote counts initially tabulated by
the clcctions supervisor’s staff and certified by the canvassing
board, Beckstrom received 52 percent of the precinct vote but
just 40 percent of the absentee vote. According to the recount, Reckstrom received 4 I percent of the uncontested
absentee votes and 37 percent of the contested overmarked
absentee votes. Thus. Bcckstrom rcccivcd close to 40 percent
ofthe total absentee votes in both the initial count and in the
re-count.
As appellant points out, the diffcroncc bctwecn the
pcrccntage of Vogel’s precinct vote total and the pcrccntagc
of his absentee vote total was 11 percentage points.
I However, we note that Vogel was not alone in receiving a
significantly larger percentage of absentee votes than
On the same day appellant filed his
motion for a re-count, he filed a second
amended protest and complaint, again alleging
fraud and adding allegations of substantial
failure on the part of Volusia County election
officials to comply with the requirements of
the election laws pertaining to absentee ballots.
The absentee ballots were of crucial
importance in the sheriffs election because,
although appellant received more votes than
Vogel in the precincts, Vogel received a
sufficient majority in the absentee votes to
overcome appellant’s precinct vote margin of
victory. Appellant asked the court to declare
all of the absentee votes to be invalid and to
declare him the winner based on the precinct
vote alone. Appellant argued that absentee
ballots were tampered with and modified in
violation of section 10 1.56 14(5), Florida
Statutes (1995),4 in that at least 6500 absentee
ballots contained votes which were marked
over with a black felt-tip marker; and an
additional 1000 absentee ballots were similarly
marked, but it was impossible to determine
whether they were marked over or newly
marked.5 Appellant alleged that this process
of re-marking with black markers was tainted
with potential fraud.’ The circuit court held a
the other ballots for that precinct.
We construe “defective ballot” lo include a ballot which is
marked in a manner such that it cannot be read by a scanner.
‘The method ofcounting absentee ballots used in
Volusia County for the 1996 election was called “AccuVote,” which is an optical scan tabulating system. Five other
Florida counties also used this type of optical scan system. In
using this system. absentee voters wcrc instructed to mark
their ballots with number two pencils. The optical scanner
rejected ballots which wcrc marked with instruments other
than number two pencils. Election supervisors in three other
counties (Leon, Putnam. and Monroe Counties) using this
type of optical scanner tcstiticd that their procedures in
rcspcct to rejected ballots was the same as the procedure used
in Volusia County. The procedure was to use a black felt-tip
marker to m-mark ballots that the scanner could not read.
The re-mark was placed on top of the voter’s original mark,
making it possible for the scanner to then record the vote.
This was the proccdurc recommended by the manufacturer’s
representative of the company that sold the optical scanners to
Volusia County. The Supervisor of lllections for Leon
County testified that this m-marking procedure was approved
for USC in processing absentee ballots by the Division of
Elections of the Department of State.
percentage of precinct votes. In the United States presidential
clcction held the same day, another Republican Party
candidate, Dole, showed a 9-percent margin between his
pcrccntage of absentee votes and percentage ofprccinct
votes. and Republican Party congressional candidate Fields
had a 15percent margin bctwcen absentee and precinct vote
percentage totals. A statistical expert who testified on behalf
of Volusia County prcscnted demographic explanations for
the absentee voting pcrccntage discrepancies.
‘Section 101.5614(5),
provides in relevant part:
Florida Statutes (1993,
“Other vote-counting irregularities alleged by
appellant included appellant’s claims that absentee ballots
were left unattended and accessible at the oflice of the
elections supervisor; that absentee ballots were opened by
various persons outside the prcscncc of any member of the
canvassing board; that shcrif’t’s deputies had access to and
participated in the opening of absentee ballots: that
individuals who were not employees of the elections
supervisor participated in the opening of absentee ballots; that
doors of the elections office were locked and not open to the
public when absentee ballots were being opened; that election
officials began processing absentee ballots through electronic
tabulating equipment at least four days prior to the election;
that prior to opening absentee ballot mailing envelopes,
election officials failed to compare the signature of the voter
on each voter’s certificate with the signature of the voter as
shown in registration records; that clcction ofIicials accepted
as many as 1463 absentee ballots which were illegal because
If any ballot card is
damaged or dcfcctive so that it cannot
properly be counted by the automatic
tabulating equipment, a true duplicate
copy shall he made of the damaged ballot
card in the presence of witnesses and
substituted for the damaged ballot. If
any paper ballot is damaged or defective
so that it cannot be counted properly by
the automatic tabulating equipment, the
ballot shall be counted manually at the
counting center by the canvassing board.
After duplicating a ballot, the
defective ballot shall bc placed in an
envelope provided for that purpose, and
the duplicate ballot shall be tallied with
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nonjury trial in which testimony was presented
for seven days and argument of counsel was
presented for one day.
The trial court thereafter entered a
detailed final judgment which contained a
combination of findings of fact and
conclusions of law. The trial court determined
that the key issue in the election contest was
the re-marking procedure used by election
officials on many of the absentee ballots so as
to enable those ballots to be counted by an
electronic scanner. The trial court found that
this re-marking procedure was not in
substantial
compliance
with
section
101.5614(5), Florida Statutes (1995) because
the procedure provided no reasonable
substitute means of verification of the results
of the election. The trial court found this
noncompliance with procedures mandated by
the statute to be gross negligence. The trial
court found that this noncompliance created an
opportunity for fraud. However, the trial
court found that, although there was an
opportunity for fraud, no fraud was proven,
The trial court applied this Court’s
decision in Boardman v. Esteva, 323 So. 2d
259 (Fla. 1975) to these factual findings. The
trial court concluded that there was a ‘Yull and
fair expression of the will of the people. Vogel
won it.” The court entered judgment for the
the voter certiticates accompanying them lacked either the
voter’s signature or the signature and/or address of the
witness; that a number of abscntce ballots remained absent
and unaccounted for; that election offrcials failed to properly
preserve all absentee ballots for which duplicates were made,
and a number of duplicate ballots were unaccounted for, that
several voters who requested absentee ballots hut who had
not received them in time for the election were denied the
right to vote in person; and that some absentee ballots wcrc
changed and/or misplaced, lost, or otherwise not counted as a
result of fraud, gross negligence, or intentional wrongdoing.
Appellant claimed that these alleged irregularities violated
subsections of chapter IO I, Florida Statutes (I 995) (providing
rcquircments for voting methods and procedures), and
chapter 102, b’lorida Statutes (1995) (providing requiretnents
for conducting elections and ascertaining the results).
defendants, thereby affirming the election of
Sheriff Vogel.
Beckstrom appealed this final judgment
to the Fifth District Court of Appeal. In an
order certifying the case to this Court, the
Fifth District stated:
The trial judge ruled
that the Canvassing Board
acted with gross negligence
but that there was no evidence
of fraud in the process; thus
the election was valid. Relying
upon the analysis in Boardman
v. Esteva, the trial court held
that courts should not decide
elections but should condone a
“certain level of incompetence”
by election officials, unless the
incompetence,
level
of
negligence or error reaches an
intolerable level. Although the
court found that the remarking process used by
election officials in this case
irreparably harmed the sanctity
and integrity of the election,
attempting to apply Boardman,
the trial court found a level of
incompetence here acceptable.
Further, the court found “there
[was] a fi.111 and fair expression
of the will of the people .‘I
and that the will of the people
was not affected by the
negligence of the Canvassing
Board. The trial court also
found substantial compliance
with absentee voting laws
sufficient to make the ballots
legal. The trial court then held
there was an accurate count of
absentee vote
and
the
dismissed the election protest
with prejudice.
It is clear that the
controlling authority in Florida
is the Boardman decision and
that, i n Boardman the
supreme court intended to
circumscribe
courts’
the
involvement in the electoral
process.
The lower court
suggested that since it was
decided in 1975, the Boardman
decision has become a “license
for lawlessness by election
officials.” Boardman offers no
guidance concerning the kind
or degree of negligence that
will
warrant
judicial
intervention,
absent fraud.
This Court has found no case
wherein the trial court has
made a finding of gross
negligence by a Canvassing
Board and many technical
violations of Chapter 102 by
the supervisor of elections, yet
validated the election. It
appears that the validity of an
election where there has been a
finding of gross negligence, but
no fraud, in the handling of
absentee ballots and the use of
the
tabulating
automatic
equipment that is currently
used in many counties in this
state is an issue of great public
importance whose resolution is
required by the high court in
light of the rule of Boardman
v. Esteva.
In this appeal, appellant raises the
following four claims: (1) that the trial court
erred as a matter of law when it refused to
invalidate the absentee ballots; (2) that the trial
court erred when it concluded that there was
no evidence of fraud in the absentee ballot
process; (3) that the trial court erred in
concluding that there was an accurate count of
the votes; and (4) that the trial court erred in
failing to invalidate the absentee returns after
declaring 885 ballots illegal because they did
not contain either voter signatures, witness
signatures, or witness addresses. In respect to
issues three and four, we conclude from our
review of the record that the trial court did not
abuse its discretion in the final judgment with
respect to those issues. We therefore affirm
the final judgment as to those issues but do not
find that they merit discussion.
Appellant’s first and second issues
encompass the issue certified to us by the
district court which focuses upon our decision
in W
Boardman.
e begin our analysis of this
issue by reiterating the statement of principle
which we made in analyzing the Boardman
election contest:
[T]he real parties in
interest here, not in the legal
sense but in realistic terms, are
the voters. They are possessed
of the ultimate interest and it is
they whom we must give
primary consideration. The
have
direct
contestants
interests certainly, but the
office they seek is one of high
public service and utmost
importance to the people, thus
subordinating their interests to
that of the people. Ours is a
government of, by and for the
people. Our federal and state
(Citation omitted.)
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constitutions guarantee the
right of the people to take an
active part in the process of
that government, which for
most of our citizens means
participation via the election
process. The right to vote is
the right to participate; it is
also the right to speak, but
more importantly the right to
be heard, We must tread
carefully on that right or we
risk the unnecessary and
unjustified muting of the public
voice.
By refusing to
recognize an otherwise valid
exercise of the right of a
citizen to vote for the sake of
sacred, unyielding adherence
to statutory scripture, we
would in effect nullify that
right.
Boardman, 323 So. 2d at 243.
In Boardman, we followed this
statement with the history of cases in which
we had addressed questions concerning
compliance with election statutes. We then
upheld the challenged election, in which an
unsuccessful candidate for a judicial seat on
the Second District Court of Appeal sought to
be declared the winner, based solely on the
precinct vote count because of alleged
irregularities in the absentee ballot count,
Boardman, 323 So. 2d at 261. In upholding
the election, we stated:
[Rlealizing as we do that strict
compliance has been required
by this Court in other cases,
we now recede from that rule
[and hold] to the effect that
substantial compliance with the
absentee voting laws is all that
is required to give legality to
the ballot.
I$, at 264.
We set forth in Boardman the
following factors to be considered in
determining the effect of absentee ballot
irregularities:
(a) the presence or absence of
fraud, gross negligence, or
intentional wrongdoing;
(b) whether there has been
substantial compliance with the
essential requirements of the
absentee voting law; and
(c) whether the irregularities
complained of adversely affect
the sanctity of the ballot and
the integrity of the election.
Td. at 269 (emphasis added).
The Fifth District and appellant
question whether, under our holding in
Boardman, the trial court could find gross
negligence but no fraud and still sustain the
election result. We recognize that underlying
this question is the direct fundamental issue as
to whether a trial court can sustain a certified
election result after the court has found
substantial noncompliance with the election
statutes, but the court has also found that this
result reflects the will of the people despite the
substantial noncompliance. We answer the
question in the afftrmative.
We stress, however, that we are not
holding that a court lacks authority to void an
election if the court has found substantial
unintentional failure to comply with statutory
election procedures. To the contrary, if a
court finds substantial noncompliance with
statutory election procedures and also makes
a factual determination that reasonable doubt
exists as to whether a certified election
expressed the will of the voters, then the court
in an election contest brought pursuant to
section 102.168, Florida Statutes (1997), is to
void the contested election even in the absence
of fraud or intentional wrongdoing.
We hold that there is a necessary
distinction between an election contest with a
judicial determination of fraud and an election
contest with a judicial determination of
substantial noncompliance with statutory
election procedures, even if the noncompliance
is determined to be a result of gross negligence
by election officials. Such a distinction is
required in order to respect the fundamental
principle upon which we based our decision in
As the trial court in this case
Boardman.
recognized, the essence of our Bnardman
decision is that a trial court’s factual
determination that a contested certified
election reliably reflects the will of the voters
outweighs the court’s determination of
unintentional wrongdoing by election officials
in order to allow the real parties in interest-the voters--to prevail.
By unintentional
wrongdoing, we mean noncompliance with
statutorily mandated election procedures in
situations in which the noncompliance results
from incompetence, lack of care, or, as we find
occurred in this election, the election officials’
erroneous understanding of the statutory
requirements. In sum, we hold that even in a
situation in which a trial court finds substantial
noncompliance
caused by unintentional
wrongdoing as we have defined it, the court is
to void the election or& if it finds that the
substantial noncompliance resulted in doubt as
to whether a certified election reflected the
will of the voters.
In direct answer to the district court’s
request for “guidance concerning the kind or
degree of negligence that will warrant judicial
intervention, absent fraud,” we clarify that the
term gross negligence as used in Boardman is
not, as in a tort action, a measurement of the
degree of care by election officials. Rather, in
this context, gross negligence means
negligence that is so pervasive that it thwarts
the will of the people.
We expressly state that our decision in
Boardman is ti to be read as condoning
anything less than strict adherence by election
officials to the statutorily mandated election
Such adherence is vital to
procedures.
safeguarding our representative form of
government, which directly depends upon
election officials’ faithful performance of their
duties. Neither Boardman nor this case
concerns potential sanctions for election
officials who fail to faithfully perform their
duties. It is for the legislature to specify what
sanction should be available for enforcement
against election officials who fail to faithfully
perform their duties. We simply conclude that
the court should not frustrate the will of the
voters if the failure to perform official election
duties is unintentional wrongdoing and the will
of the voters can be determined.
Turning to this issue in this case, we
agree with the trial court that the Volusia
County process of re-marking ballots was not
in substantial compliance with section
101.5614(5),
Florida Statutes (1995), even
though the process was widely used,
recommended by the manufacturer’s
representative, and approved by the state
Division of Elections. To comply with the
statute, ballots which were defectively marked
and thus unreadable by the scanner had to be
hand-counted or duplicated before being remarked so that the original ballot marking
could be preserved for verification. We agree
with the trial court that the re-marking process
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was an opportunity for fraud. Our review of
the record of evidence presented at the nonjury
trial causes us to conclude, however, that the
trial court was within its discretion in
determining that, although the re-marking
process was an opportunity for fraud, fraud
did not occur. The trial court’s specific
findings were:
replacement of ballots cast by
electors with the new ballots
prepared through fraud. There
is no inference--no evidence
from which an inference can be
drawn that this occurred.
The
next
method
would have been simple
erasure, simply erase the
Beckstrom ballot and pencil in
a Vogel ballot. The ballots
were examined. The examiners
looked at them and did not pull
any out and point the finger of
guilt at erasures. I did not
notice any significant level of
erasures in the absentee
ballots. Many ballots were
in very messy
returned
condition.
I can draw no
inference from their condition
that there were erasures that
were evident. There being no
evidence of that, 1 am not
persuaded that it occurred.
The next is simply not
marking over a Beckstrom
vote, simply leaving that as one
that the reader did not read
and marking over other races
on the ballot, This occurred
on some occasions during the
course of the election. I am
not persuaded it occurred on a
systematic basis. I am more
comfortable with this thinking
because the clerk’s count of
the votes would have detected
this and counted all of those
votes, so it could not have
caused any harm.
I do not think that the
machines rejected the ballots
There are
several
allegations or assertions of
fraud.
The first is that
somebody overmarked an
under-vote; basically, placed a
mark on a blank ballot. 1 am
not persuaded that that
happened as a result of fraud
because of the under-vote
statistics.
The under-vote
statistics are not disputed and
we have a greater undervote in
the over-marked ballots than we
had in the good pencil ballots.
The difference in the under-vote
was really quite marked. We
would
expect
statistical
evidence to be the opposite if
this had been happening in a
systematic manner.
The next would be to
over-vote a Beckstrom vote by
simply deliberately marking the
Vogel oval in addition to the
Beckstrom
oval
thereby
inducing the reader to cancel
the vote. If this had occurred,
the overvote statistic would
certainly be far greater than it
is. It is minuscule at this time
and 1 am not persuaded that
this occurred on any systematic
basis.
The next is the
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on a random basis.
The
statisticians agreed that a
random selection is one in
which each member of the
class has an equal chance of
selection. That was not the
case here. Because of the
nature of the automatic
tabulating equipment, a ballot
that had been improperly
marked had a greater chance of
selection than a ballot that was
not improperly marked. So I
do not find this to have a
random selection of ballots.
The twenty-five ballots
that were selected by the
plaintiff for examination and as
evidence of the interference of
fraud lend themselves to an
inference of fraud, but 1 find
that they lend themselves
equally to an inference of
negligence in the overmarking
process. 1 have examined large
numbers of these ballots and
these twenty-five were not the
only ballots that were marked
incorrectly.
There were
numerous ballots that had not
been selected for presentation
that
were also marked
incorrectly and there are
incorrect markings on virtually
every single race. I have
examined ballots in which the
back side of the ballot was not
marked at all or numerous
ballots
inconsistently
mismarked. I cannot draw an
inference of fraud from that. I
can, however, d r a w a n
inference of negligence in the
marking process. 1 choose to
draw the latter inference.
We approve the trial court’s findings in
respect to fraud. We construe the trial court’s
finding of gross negligence in this instance to
be a measurement of the culpability of the
election officials but not a finding that the
election failed to express the will of the voters.
Therefore, we conclude that the trial court was
within its discretion in determining from the
evidence that the election was a “full and fair
expression of the will of the people. Vogel
won it.”
Based upon the foregoing analysis and
upon our review of the record, we find no
basis for reversal of the trial court’s final
judgment based upon appellant’s issues one
and two. Therefore, we affirm the final
judgment of the trial court. We do disapprove
from the final judgment the statement: “I do
not have jurisdiction to set aside this election.”
The trial court clearly had jurisdiction to
consider and decide the issue presented by
appellant’s complaint in this election contest
pursuant to sections 102.166( 11) and 102.168,
Florida Statutes (1995). Thus, the correct
statement is that the trial court found no
factual basis for requiring that the election be
set aside. Accordingly, we affirm the trial
court’s decision.
It is so ordered.
KOGAN,
C.J.,
OVERTON,
SHAW,
H A R D I N G a n d ANSTEAD, J J . , a n d
GRIMES Senior Justice, concur.
NOT FINAL UNTIL TIME EXPIRES TO
FILE REHEARING MOTION AND, IF
FILED, DETERMINED.
Appeal of Judgment of Circuit Court, in and
for Volusia County,
-8-
.
a
John V. Doyle, Judge,
Case Nos. 96-11098~CIDL-0
1 &
96- 111 OS-CIDL-0 1,
Certified by the District Court of Appeal,
Fifth District, Case No. 97-6 17
Donald W. Weidner and Jeanine H. Coris of
Weidner & Wortelboer, Jacksonville, Florida,
for Appellant
Daniel D. Eckert, Volusia County Attorney,
and James R. Clayton, DeLand, Florida,
for Appellees
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